pre-deployment legal brief - public.navy.mil legal.pdf · pre-deployment legal brief ... •...

Office of the Judge Advocate General 19 Jan 11

Informational UNCLASSIFIED

Pre-Deployment

Legal Brief

What you need to know before you

deploy

OJAG Code 16 (Legal Assistance)


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Introduction

The purpose of this brief is to provide you with all the knowledge you need

to be “legally ready” before you deploy

What does it mean to be “legally ready?”

– You and your family resolve legal issues or have a plan in place that

addresses your unique legal requirements, enabling you to be focused

on the job and mission, remaining confident that your legal needs are

being met

Legal Assistance offices provide legal

advice to on personal legal issues

to Servicemembers and their dependants

at no cost



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Legal Issues Related to Deployment

Estate Planning (Wills)

Powers of Attorney

Consumer Protection

Servicemembers Civil Relief Act (SCRA)

Family Support

Employment and Reemployment Rights (Reservists Only)



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Estate Planning

An “Estate Plan” refers to all of the documents that concern

possessions, property, and even health care decisions in the event

of death or incapacitation. These documents include:

– Wills

– Living Will and/or Health Care Directives

– Durable Financial Power of Attorney

– Disposition of Remains

– SGLI

– “Record of Emergency Data” (DD-93) and your Electronic

Service Record



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Estate Planning - Wills

A will tells the world how to distribute your estate (your money and

possessions) upon your death

The will names an “executor” or

“personal representative”

who will distribute your estate

If you have children who are younger

than 18, or who are over 18 and

disabled, a will can nominate guardians for them and their assets in

the event both parents pass away

A will can also tell your personal representative how to dispose of

your remains



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Estate Planning – Who Needs a Will?

If you have dependents; and/or own real property; and/or have

personal property that you want to specifically designate how it

would be disposed of, then you may need a will

If you die without a will

– Your property will be distributed according to state law

– If you have minor children, the state will make decisions about

your children upon your death if you die without a will

– These decisions may or may not be in accordance with your

wishes

If you are married, both you and your spouse can get a will (and

many other important estate planning documents) at no cost at a

military legal assistance office



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Estate Planning – What is a Living Will?

A living will allows you to nominate an “agent” (a trusted adult) to

make health care decisions for you if you are still living but cannot

make those decisions for yourself because of a serious illness or

injury

A living will also allows you to make, in advance, certain decisions

about your health care by specifically telling your “agent” what to do

It is sometimes known as an “Advance Healthcare Directive”



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Estate Planning – Record of Emergency Data,

SGLI Beneficiary Designation

It is important to think of all of these documents as a part of your

estate plan, even though they are not part of your will

– These documents allow you to designate who will receive your

life insurance, death gratuity, final pay, and other benefits in the

event of your death

– The value of these benefits can exceed $500,000

A legal assistance attorney can help you make sure these

documents are filled out correctly – if your will sets up a special

“trust” (e.g., for your minor children), it is especially important for a

legal assistance attorney to help you complete the SGLI Beneficiary

Designation

These documents must be filed with your PSD to take effect



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Powers of Attorney

Powers of attorney are legal documents where you (the “principal”)

grant someone else (the “agent”) the legal authority to act on your

behalf

Common uses for a power of attorney allow your agent to act on

your behalf to:

– Endorse or cash checks in your name

– Sell, register, transport, or purchase your vehicle

– In loco parentis (allows someone else to make “parental” types of

decisions for your children, but is not a substitute for a court

order)

– File your income tax returns

– Enter or vacate military housing for you

– Buy, sell, or refinance your real estate



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Powers of Attorney

There are two common types of Powers of Attorney:

– General

• A “General” power of attorney gives your agent unlimited power to

act on your behalf

• Benefits: you don’t have to guess what will need to be done during

your deployment because it allows your agent to do everything on

your behalf

• Problems: the power that it provides may be abused, and some

businesses may not accept it due to its broad nature

– Special

• A “Special” power of attorney gives your agent limited power to do a

specific thing (to register your car, for example)

• Special powers of attorney are more likely to be honored by

businesses and creditors

• They are generally required for financial and real estate issues



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Power of Attorney for Child Care

(In Loco Parentis)

A child care power of attorney allows you to appoint an agent to care for

your minor children

It can be an important tool for dual military spouses and single parents but it

is not a substitute for a Family Care Plan (NAVPERS 1740/6 and 1740/7)

– A child care power of attorney is something to have in addition to your Family

Care Plan – it can give the person you designate in your Family Care Plan the

legal authority to care for your child

It is often used by caregivers to:

– Register children for school or daycare

– Authorize medical treatment for the child when the parents cannot be reached to

provide their authorization

A child care power of attorney does not grant legal or physical custody –

those can only be granted by a court order



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Communicating Your Estate Plan

Once your estate planning documents are completed, it is important to

communicate your wishes to your close family and friends

– Tell the executor of your will that you have named that person as an executor,

and tell him or her where the documents will be located

– If you have named a guardian or guardians for your minor children, tell the

guardians that you have named them as such, and tell the guardians any other

wishes you may have regarding the care of your children

– Tell your loved ones, as well as the person you named as your agent in the

advanced health care directive (living will), your wishes for your health care

should you be injured or ill and unable to make such decisions for yourself

– Communicate any wishes you have regarding your burial or memorial service to

your loved ones; just in case the documents containing your wishes cannot be

located

Tell those close to you that you have an estate plan, and explain where the

documents are located



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Consumer Protection and the

Servicemember’s Civil Relief Act

Important topics in these areas are:

– Identity Theft

– Vehicle Storage

– Take Care of Your Property While Deployed

– Tax Filing

– Meeting Financial Obligations While Deployed

– Cell Phone Contracts

– Interest Rate Protection



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Consumer Law – Identity Theft

To help avoid identity theft, add an “Active Duty Alert” to your credit

reports calling any one of the three credit reporting agencies (calling

one places the alert on file with the others)

– The active duty alert requires the Agencies to contact you directly

to verify your identity if someone requests credit in your name

• TransUnion – 1-800-680-7289

• Equifax – 1-800-525-6285

• Experian – 1-800-397-3742

Regularly check your credit history

– Entitled to free annual reports - www.annualcreditreport.com

Review your monthly financial statements – immediately report any

abnormalities


http://www.annualcreditreport.com/


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Consumer Law – Vehicle Storage

It is a good idea to notify DMV of your current address in case your

vehicle is towed

Store your vehicle in legitimate storage facilities

Make sure the registration is current

Make sure the insurance is current in case the vehicle is damaged

while in storage

– Many insurance companies have “storage” insurance that is less

expensive but will still protect the vehicle



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Taking Care of Your Property

While Deployed

In addition to your vehicle, you should think about how to protect and care for your

other possessions and property while you are deployed

– Home or apartment

• Make sure you have homeowners or renters insurance that will stay in place

for the entire deployment

• Notify your landlord or neighbors of your absence and provide a key to

someone you trust

• Do your best to prepare your home or apartment and personal property for

the weather that may occur while you are deployed (for example, winter-

proofing your home even though winter may be months away)

– Other possessions

• Make sure your renters or homeowners insurance provides enough coverage

so that you can replace your possessions in the event they are lost

• Create a record of your possessions by using videotape or simply writing

down a list of the things you own – this will make filing a claim much easier in

the event of a loss



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Tax Filing

If you are deployed during the tax season (January through mid-April), the IRS

provides three types of extensions

– First, for those deployed to a combat zone or in support of contingency operations, the IRS

provides an automatic extension for filing and payment of any taxes you owe until 180 after

you return from the combat zone (plus any days you were deployed during that particular tax

season)

• For example, if you returned from a deployment on 15 January, you have 195 days (180

plus the 15 days of the tax season you were deployed) to file and pay your taxes

– Second, for those who are living outside the United States (but not deployed to a combat zone

or in support of contingency operations) the IRS provides an automatic two month extension

of the deadline to file your taxes

• NOTE – the deadline to pay does not extend; if you file after the deadline and you owe

taxes, you will be charge interest on the amount you owed starting on the last day of the

tax season

– Finally, any military member can file form 4868 before the last day of the tax season to

receive a 6 month extension to file

• The extension is automatic after you file the form

• Like the second type, the deadline to pay taxes does not extend



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Meeting Financial Obligations

There are additional financial obligations to consider before you deploy, for

example:

– Loan payments

– Credit card payments

– Utilities

– Other recurring payments (gym membership, cell phone, car lease, etc.)

– Child support

It is important to have a plan in place to meet these financial obligations,

whether by arranging for automatic payments or requesting a hold while you

are deployed

– Keep in mind that some of these obligations may be placed on hold, but the

company will continue to charge you interest. It is best to use the protections of

the SCRA (see next section) if possible – if you cannot, it is best to continue to

make payments while deployed



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Servicemembers Civil Relief Act

(SCRA)

Allows termination of rental property lease and some auto leases

May allow you to delay civil court proceedings while an active duty

Allows you to reduce the interest rates on most of your pre-service debt to 6%

Allows you to cancel or suspend cell phone contracts while on orders out of the contract area

Protects you from lien sales, judgments against you, and protects your family from eviction under certain circumstances

Note: There are complex requirements to obtain many of these benefits, so it is important to see a legal assistance attorney to insure you will be successful in exercising your rights under the SCRA



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SCRA – Cell Phones

The SCRA allows you to interrupt your cell phone service without

paying any fees as long as you are on orders for 90 days or more to

a location that is not supported by your current cell phone contract

Allows you to reinstate your service with the same phone number as

long as you resubscribe to the service within 90 days from the time

you return to the contract area

It is best to provide your cell phone company with written notice of

your intent to interrupt your service along with a copy of your orders

– Legal assistance attorneys are available to help if you have

questions about this process



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SCRA - Landlord/Tenant

The SCRA is powerful because it allows servicemembers or their

dependents with whom the member lives to break a lease with

deployment orders (or with any notification, certification, or

verification from your Commanding Officer) of 90 days or more

You must provide written notice to the landlord along with a copy of

your orders

– You will owe rent for one month after the end of the month in

which notice was given, so it is a good idea to provide notice

early or you may end up paying rent for an extra month while you

are deployed



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Landlord/Tenant

Schedule a walkthrough with your landlord at least 3 days before you

leave so you can make any repairs to damaged property before you

move

Landlords should not charge you for damages that fall into the

category of “normal wear and tear”

Landlords are usually required to return a security deposit within a

certain timeframe, and to fully account for any money withheld

State laws may provide even more protections for tenants – you can

go to your legal assistance office to learn about these protections



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SCRA – Delaying Certain Court

Proceedings Due to Military Service

Don’t ignore any subpoenas or other court documents that are delivered to you – IMMEDIATELY NOTIFY AND SEEK ASSISTANCE from your chain of command and your local legal assistance office

Civil or domestic court proceedings may be rescheduled due to military service or a military obligation that prevents you from attending at the set date and time; the SCRA requires courts to delay proceedings for at least 90 days

– Requires one letter from you and one letter from your Commanding Officer, both of which state:

• that your military obligation prevents you from attending court

• leave cannot be granted

• a date on which you will be available to appear in court

– It is important to note that these letters should be sent before the court date – if the proceedings take place without you, any judgments levied against you can be difficult and expensive to overturn

Note: The SCRA does not provide for a delay in cases of criminal

proceedings for failure to appear citations or in matters involving violations of motor vehicle operation laws



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SCRA – Additional Benefits

In many instances, the SCRA allows deploying servicemembers to break car

leases before a deployment (of 180 days or more) if the servicemember gives written notice and a copy of orders to the dealership and returns the vehicle within 15 days of that written notice

Servicemembers (whether deploying or not) may reduce their interest rate

on a pre-active duty debt to 6%

– Provide the request in writing

– Include a copy of your enlistment contract or active duty orders

– Such loans include credit card debt, mortgages, and car loans

The SCRA can also delay an eviction of the servicemember’s family while

the servicemember is deployed

Legal assistance attorneys are available to help if you have questions about these benefits



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Family Support

Family support issues sometimes arise while on deployment

– MILPERSMAN 1754-030 states that there is a duty to support military

dependents, and dependents may contact a Sailor’s command and ask

that the Sailor be counseled about this duty

– Setting up an allotment or other type of automatic payment will insure

continuous support for your dependents and can help avoid problems

before they start

Ensure all dependents have ID cards, and that they will not expire during deployment

Ensure your family has information about medical providers, Fleet & Family Support Centers, command ombudsmen, etc.

Ensure your Command has accurate information on how to reach your dependents in case of emergency or natural disaster



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Employment and Reemployment

Rights (Reservists Only)

Uniformed Services Employment and Reemployment Rights Act

(USERRA)

– Prohibits discrimination against Reservists by their civilian

employer and requires reemployment after a call to Active Duty

– In addition to providing reemployment, the employer must also

return the Reservist to a similar position for seniority, pay, and

retirement purposes, as well as provide retraining if necessary



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To insure reemployment after a call to Active Duty, Reservists

MUST:

– Notify employer of upcoming call to Active Duty (provide a copy

of orders along with written notification)

– Receive an Honorable or General discharge (if released from

Reserves after Active Duty time)

– Reapply for the job in a “reasonable amount of time”



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Timely reapplication for job means:

– If Active for <31 days, you must reapply at the beginning of the

first regularly scheduled work period, after taking the time

required to return home safely followed by an 8 hour rest period

– If Active for 31-180 days, you have 14 days to reapply

– If Active for 181 or more days, you have 90 days to reapply

– A service related illness or injury extends the reapplication

deadline to 2 years during recovery



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Support for Reservists dealing with USERRA issues can be obtained

by contacting:

– The Department of Labor (DOL VETS)

http://www.dol.gov/vets/

(804) 786-7270/7269/6599

– National Committee for Employer Support of the Guard and

Reserve (NCESGR)

www.esgr.org

1-800-336-4590


http://www.dol.gov/vets/

http://www.esgr.org/


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Legal Assistance Offices

For more information on any of the topics discussed in this presentation, or for any other personal legal issues, contact your local legal assistance office at: http://www.jag.navy.mil/legal_services/nlso_map_glo

bal.htm

– Click on your geographic region to find the office closest to you

– Phone consultations are also available if you are too far away to travel to the nearest office

JAGs in other services can also provide legal assistance advice - you may find an office in your geographic location by going to the Armed Forces Legal Assistance Locator at: http://legalassistance.law.af.mil/content/locator.p

hp


http://www.jag.navy.mil/legal_services/nlso_map_global.htm

http://www.jag.navy.mil/legal_services/nlso_map_global.htm

http://legalassistance.law.af.mil/content/locator.php

http://legalassistance.law.af.mil/content/locator.php

pre-deployment legal brief - public.navy.mil legal.pdf · pre-deployment legal brief ... •...

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